Founder and Editor of The Lanchester Review. Previous or occasional contributor to Prime Politics, Comment is Free, The First Post/The Week, Harry's Place, New Directions, The Brussels Journal, The London Progressive Journal, Labour Uncut, The American Conservative and Russia Today (RT). Available for work via davidaslindsay@hotmail.com, all lower case.

Sunday, 10 February 2013

Justice and Security

While all attention at Westminster was focused on
whether to allow gay marriage, this Coalition Government did something furtive
– something that is not only much less liberal, but coldly terrifying. Under
the cover of the furore, it quietly disinterred the corpse of its ‘Secret
Justice’ Bill. This Bill creates extraordinary new legal powers to keep
official dealings hidden from us. It changes all the comforting certainties
about the rule of law in Britain. Most of us have some kind of grasp of what is
officially called the Justice and Security Bill.

But it can be hard to imagine what it would
actually mean in practice. The Government wants us to think its scope is
limited to rare and arcane disputes, perhaps born of foreign battlefields. Or
ones that sound as if they belong in spy novels, involving CIA ‘black ops’ and
‘dark jails’. But if it becomes law, the effects will be felt much closer to
home. The shocking outcome of the recent Hillsborough Inquiry, bringing justice
at last to 97 families? If similar circumstances were to arise again, it is
likely that justice would never be delivered: if the families tried to sue,
alleging a bungled police operation and a subsequent cover-up, the Bill would
give the authorities the ability to keep the truth concealed.

A case brought against the Ministry of Defence by
families of soldiers killed in a foreign deployment, alleging their loved ones’
equipment was defective? This is not mere hypothesis. Many argue now that the
British death toll in Afghanistan has been higher than it should have been
because some of our military vehicles were too vulnerable to roadside bombs. With
this law enshrined, the Government could insist on a closed, secret hearing.
There, it could present evidence denying such claims. No one could challenge
it, because no one directly affected by the case would ever know what it was.

Or take the very real, current scandal of the
women green activists who unknowingly entered sexual relationships with
undercover police officers. Those defending such a case could be entitled to a
secret hearing, at which they could claim that such tactics were entirely
justified, on the basis that the women posed some kind of threat to national
security. This is the reality of a society regulated by secret justice: a legal
system weighted irredeemably in favour of those in power. The legislation had
previously been watered down considerably, and wisely, by the House of Lords.
Now, it is not just as bad as it was when introduced last year. It’s even
worse.

Under the resuscitated Bill, matters involving
State security will usually be heard at secret ‘closed material procedure’
hearings. They will be attended only by security-vetted ‘special advocates’.
Those involved in cases against official bodies will be permanently unable to
know about the evidence deployed against them. The new revised draft, the
product of the final session of the Bill’s committee stage, was forced through
by a majority of one. The Ulster Democratic Unionist Ian Paisley Jnr cast the
critical vote. This took place at precisely the same time as the same-sex
marriage debate was happening in the main Commons chamber, which is why all
this went virtually unnoticed.

The consequences are draconian. The Government’s
actions, prompted by intense lobbying from MI5 and MI6 security chiefs, mean
there is now less than three weeks to stop the enactment of a ruthless measure
that amounts to a charter for cover-ups. A real recent example of a case that
will be affected is that of Abdelhakim Belhadj. He is the Libyan opposition
leader abducted with his family from Bangkok with the help of British
intelligence, then tortured by Gaddafi’s brutal regime for years. Like
other victims of ‘extraordinary rendition’, Mr Belhadj, who has never been
alleged to have committed a single hostile act against Britain, its citizens or
its allies, is suing the UK Government. But the official evidence of what was
done in our name will be deemed far too ‘sensitive’ to be aired in open court.

Once the Bill becomes law, his chances of success
are remote. And the prospects for enforcing the merest whiff of accountability
on the agencies responsible for torture cases, and, indeed, a vast range of
official activity from national security to the country’s ‘economic wellbeing’,
will be just as distant. Previously, the Lords had passed two crucial
safeguards to stop this. The first said judges could grant the Government a
secret hearing only if other alternatives had already been considered, like,
for example, asking permission from the judge in a case to withhold sensitive
evidence altogether, under the longstanding system of ‘public interest
immunity’. The second Lords safeguard was more fundamental. It stated that
judges could allow a secret hearing only after balancing the Government’s
demand for one against the historic legal principle that justice must always be
open.

Last week, with the passage of Amendment 55,
moved by the junior Justice Minister James Brokenshire, both these safeguards
were swept away. ‘In practice, it will now be very difficult for a judge to
resist a closed hearing,’ one legal analyst said yesterday. Under this Bill, it
is now possible a prisoner in a British jail who tried to challenge his
detention in the courts would remain incarcerated without hearing the evidence
against him. The battle is not over. Pending is a High Court action by The Mail on Sunday which seeks to make
public a secret judgment issued in an Afghan alleged torture case two years
ago, which resulted from an earlier form of secret hearing, now deemed illegal
by the Supreme Court. As this newspaper has pointed out, the Bill will
inevitably lead to a body of secret law and secret legal precedents. Our case
also asks the court to issue guidelines on how such secret judgments should be
reviewed, and whenever possible, published.

Meanwhile both Labour and several influential
Tories are determined to try to reinstate the Lords’ safeguards when the Bill
returns to the full House of Commons later this month. David Davis, the leading
Conservative backbencher, said: ‘It is appalling that the Government has reneged
on its promise to allow full judicial discretion as enacted by the Lords.’ Andrew
Tyrie, the Tory who campaigned for years against torture and rendition, says:
‘Not only must all of the Lords’ amendments remain in the Bill, they need to be
underpinned by further improvements.’ Mr Davis added: ‘What the Government did
last week is a massive dilution of the protections put in place by the Lords. I
can only hope they will summon up the courage to reinstate them.’

It is a hope anyone with even the vaguest
interest in open justice would surely share.

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About Me

Founder, Proprietor, Publisher and Editor of The Lanchester Review since 2013. Founder, Proprietor (for now), Publisher (for now) and Editor-in-Chief of Lanchester Books since 2014. Charity volunteer and administrator since 1994. Freelance journalist since 1996. Supply teacher and market research worker from 2002 until prevented by disability. Member of the Centre of Theology and Philosophy at the University of Nottingham since 2006. Preventing the University of Durham’s undergraduates’ degrees from getting the way of their education since 2000.
Elected Parish Councillor from the age of 21 until I stood down voluntarily in 2013. During that time, Lanchester was among the first in the country to secure power of wellbeing, power of general competence, and Quality Parish Council Status.
At 21, I began eight years as a governor of a primary school which, at the time of my appointment, still had the same Headteacher as when I had been a pupil there. Three weeks short of 22, I found myself in the same position when I began eight years as a governor of a comprehensive school.
Since May 2013, a member of the Durham’s Police and Crime Commissioner's Community Panel.